MANJEET KAUR Vs. TEJ PRATAP SINGH

JUDGEMENT

(1.) Petitioner herein is the legally wedded wife of the respondent. On the allegation that the respondent was not maintaining her, she moved complaint under Section 125 of the Cr.P.C. claiming maintenance from the respondent for herself as well as her two minor children. This complaint was filed on 19.12.1985. Vide order dated 3.6.1991 the learned Magistrate awarded maintenance to the petitioner and her two children @ Rs. 200/- each, i.e., Rs. 600/- per month. On 12.8.1991 she filed execution petition seeking arrears of maintenance. The respondent could not be served in the said proceedings for quite some time as he was absconding and could not be traced. In the month of February 2002, the petitioner came to know that the respondent was working as a P.E.T. Teacher at Umri High School, District Karnal, Haryana. Accordingly, she moved an application for issuing warrants of attachment at the aforesaid address, which were served and the respondent started appearing before the trial court. Thereafter, fresh execution petition was filed by the petitioner on 20.3.2003 for recovery of entire arrears with effect from 19.12.1985 amounting to Rs. 1,22,400/- with the reference of previous execution petition No. 73/1 dated 12.8.1991. The trial court passed the order of releasing Rs. 66,400/- to the petitioner after calculation of the arrears The amount claimed by the petitioner was reduced as the children had, in the meantime, become major in years 1990 and 1991 respectively. The respondent preferred revision petition against this order under Section 397 of the Cr.P.C. before the learned ASJ, Delhi. The learned ASJ has decided this revision petition vide order dated 8.1.2004 reducing the amount of arrears to Rs. 37,000/- only holding that this was the only amount payable, which was covered within the period of limitation and execution for the rest of the amount had become time-barred. Feeling aggrieved, present petition is filed.

(2.) It is the contention of the petitioner that the execution was filed on 12.8.1991, which was well within the period of limitation as the maintenance application was decided on 3.6.1991. In this petition warrants of attachment were passed, which were sought to be executed through SHO repeatedly. However, these warrants could not be executed as the whereabouts of the judgment debtor were not known. Only in 2001 when the present address of the petitioner was found, further warrants of attachment were issued through Sub-Divisional Officer, Directorate of Secondary Education and Headmaster of Umri High School, Karnal, where the respondent was working, in April 2002. The money could be realised in respect of this execution filed in 1991 only thereafter and in these circumstances, execution petition filed by the petitioner on 20.3.2003 for entire arrears could not be treated as time-barred. It was submitted that there was no negligence on the part of the petitioner to recover the arrears of maintenance as she was pursuing the execution petition filed on 12.8.1991 diligently throughout and the learned AJS did not consider this aspect, but took into consideration only the date on which second execution petition was filed, i.e.. 20.3.2003.

(3.) Perusal of the order of the learned ASJ would show that he has referred to Section 125(3) of the Cr.P.C. as per which application for recovery of amount under Section 125 is to be filed within a period of one year from the date on which it became due. Relying on the judgments of the Supreme Court in the case of Ganga Prasad v. Gomti, 2003 Cr.L.J. 2394 and Savita Kumari Nayak v. Satrughan Nayak, 1998 Crl.L. J. 2713, he held that claiming of maintenance beyond a period of one year was, therefore, time-barred. The operative part of the order reads as under:-